#19659 - 3.B. Social Contract Theories Rawls - Jurisprudence

LECTURE(s)

• Rawls is a contemporary philosopher = new political conditions – liberalism and DEM

  • A just and stable state is needed

• In CONST DEMs, there are new issues – capitalism/markets creates problems; state/private power division is also important (corporate sphere is influential)

• Another modern feature – pluralism/disagreement

  • Tough to explain this via SC – SC assumes some sort of agreement

  • BUT there are strategies to address this:

    • It’s a “bug” – we need to find the truth, and explain it to those who mistaken (Hobbes and Kant)

    • Treat it is a FEATURE (Rawls) – pluralism/disagreement isn’t a pathology; we should argue from premises that people in modern societies accept; this raises stakes quite high, however:

      • Maybe you won’t find a set of common premises

      • EVEN IF you find certain common ideas, it’s unclear that they’ll be robust enough to carry the SC

• Political Liberalism [1993] is Rawls’ critical work

  • SOC as a scheme of long-term social cooperation (like other SCs theorists)

    • This cooperation is just if it is under fair terms = we need a fair deal

      • Justice as fairness

  • Justice (political) is different from moral/religious claims

    • Political questions require a special political method

      • Political, not metaphysical

• Rawls’ method – we think of justice via a counterfactual position

  • Principles – liberty, resource distribution

  • Stability – overlapping consensus, public reason

Method: taking pluralism seriously

• Rawls sees pluralism and doesn’t despair

• Most disagreements AREN’T ad hoc – if we disagree on one issue, we disagree on most of them = people have different “comprehensive doctrines” (worldviews)

• They are COMPREHENSIVE – they spill over into ethics, morality, politics, etc. = e.g., if you believe that we should help others, you’ll also favor higher taxes

• Disagreements cut deep – NOT easily resolvable

  • E.g., does God exist? Should we have 100% inheritance tax?

• Rawls’ method:

  • Many claims are controversial – let’s not use them (they can’t be a common ground); let’s find a COMMON GROUND between the various worldviews

    • “Freestanding” account of justice – all can accept it

    • NOTE – this isn’t subjectivism = we aren’t taking a position AT ALL

  • That account will be physical, NOT metaphysical

    • Gives us a new “language” – we resolve political issues not based on my beliefs (e.g., Christian POV), but on the shared principles

    • We don’t take the lowest common denominator – we look at REASONABLE doctrine only

      • If it’s COHERENT, it’s reasonable; open to SOME revision; other recognizing (e.g., religious people realize there are atheists)

        • BUT who judges coherence? Why some revision (e.g., some people have a strong belief in God)? Seen as EXCLUSIONARY

    • Rawls amends his views – EVERY doctrine that has some notion of equality of persons (e.g., separate but equal, or men/women are all allowed) + will abide by fair terms of cooperation

      • Lowers bar

Method: common ground

• Citizens in our societies consider themselves and others to be (despite disagreements):

  • Free

  • Equal

  • Rational

  • Reasonable

• In a POLITICAL/SOCIOLOGICAL sense, not a metaphysical one; this is the common denominator in Western SOC, and one that’s prone to change

• Rawls doesn’t pack too much into these ideas – we could interpret e.g., freedom differently

Freedom and Equality

• We hold ourselves/others that we are able to act in our own views of what’s good in life

• Self-authenticating sources of valid claims on others = if we are having a moral discussion, and you make a claim, we should pay attention because you are saying

  • No need to have another warrant – we should take it seriously because it’s your view

• In terms of equality – we all have the capacity to be fully cooperating members of SOC

Rational

• We correlate goals and means, and are guided by our conceptions of the good and the right

• We are reasonable

  • We want to cooperate with others to the extent they want to cooperate with us

  • We have a “sense of justice” – sense that some terms of interaction are fair because they consider EVERYONE’s interests

  • We recognize “burdens of judgment” – all evaluative judgments in life are tough = we all bear the burden of making them

Method: the original position

• What principles would be endorsed by people who are the four above?

• Thought experiment – imagine an imaginary CONST congress

  • We are all participating, but are behind a “veil of ignorance”

    • We know basic facts about the world (e.g., resource scarcity)

    • We have some idea of goods that people find valuable (liberties, opportunities, resources, and “social bases of self-respect”)

    • BUT we lack the knowledge of OUR identities, talents, race, gender, etc. = we have no personal information

      • VOI ensures FAIRNESS – which principles of justice would you choose if you DIDN’T KNOW your position

• Combines Hobbes and Kant – everyone is doing the best for THEMSELVES (Hobbes), but you can’t regard yourself as SPECIAL (Kant)

• The more we limit the information about your position, the higher likelihood that you will settle on fairer principles – “I cut, you choose”

The value of the thought experiment

• The thought experiment is there to figure out what we ALREADY think about justice = clarifies what we IMPLICITLY believe

• People who are free/reasonable/justice/equal face one barrier – IMPARTIALITY

• So which principles would we choose:

  • Equality of resources?

    • NO – inequality helps worst-off in absolute terms

      • Poorest get 2 = some inequality; or everyone gets 1 = flat equality

        • People would choose the former – “Maximin strategy” = maximize the minimum you’d get

  • Would we allow for vast inequalities, in hope that we get lucky?

    • NO - Rawls assumes that people will be risk-averse, so no

      • If stakes are high, people will be risk-averse

  • Greatest benefit for greatest number?

    • NO – utilitarianism ignores “distinction between persons”

      • Allows us to throw another person under a bus for social benefit – risk aversion once more = what if you were the one thrown under?

• You’d choose TWO principles:

  • LIBERTY principle – everyone has an equal right to an adequate scheme of basic rights and liberties, which scheme with a similar scheme for all

    • These are civil and political liberties – e.g., association, voting, etc.

  • SOC and ECO inequalities must satisfy two conditions:

    • Must attach to positions open to all

    • Must be to the greatest benefit to the least advantaged of SOC = distribution of wealth (DIFFERENCE principle)

      • Links what happens at the top to what happens to the bottom

      • E.g., you tax people who are rich to help those who are poor

• Liberty has priority over difference – no negotiation regarding liberties

• Inequalities are justified INSOFAR AS they work to benefit the worst off

• These principles apply only to the “basic structure” of SOC – i.e., the institutions that distribute resources and rights = DOESN’T apply to “civil SOC”

  • E.g., if you have a club, you can have different levels of privilege, etc.

  • This is a POLITICAL system – nothing more

• But what of e.g., INST of family and distributing one’s affection (unlike resources) = what occurs in family does have SOC/political ramifications – tough to make a CUT (Nussbaum)

Implications for government and law

• Liberty

  • Duty not to violate basic rights

  • Not to exclude others from public sphere

  • Basic ROL, etc.

    • BUT not more niche things

• Difference principle

  • “SOC DEM State” = freedom + inequality with a SOC purpose

    • Not a “welfare State”

      • BUT again, nothing too prescriptive

Robert Nozick’s critique

• DIFF principle sets/maintains a distributive PATTERN

  • If your share gets too big, we’ll cut it down

• BUT this is no different than theft/forced labor – money that you earn is given to others

  • Wilt Chamberlain (NBA) example – people are willing to pay money to see you play; you’ll get rich = after X point, you’ll not be entitled to money

    • You need to look at HOW you got rich

• If the initial distribution is just, and subsequent transactions are voluntary = end-result is JUST as well, no matter the end pattern

  • End pattern (how much you have) isn’t relevant – if your INITIAL acquisition was just, and nothing unjust is subsequently involved = it’s all just

    • LIBERTARIANISM – “night-watchman” State

Stability

• We agree with Rawls on justice (difference + liberty), then we come back to the real world – in reality, we know everything about ourselves

  • Old disagreements will COME BACK

• So how do we ensure stability?

  • Blind obedience ISN’T the way – we should ALLEVIATE TENSION between principle of justice and comprehensive doctrines; two ways:

    • Overlapping consensus

      • We know through thought experiment the PoJ – either we apply them or we do not

      • The point of OC is there to help us achieve stability for the RIGHT REASONS (neither for “real world” legitimacy, nor for stability)

      • LIB SOCs are not about blind disobedience; stability through OVERLAPS in judgments from different directions; two steps:

        • Embed PoJ into their own comprehensive doctrine

          • E.g., I think gays are sinful, but PoJs say no; yes, it is a sin, but it’s up to God to judge them

        • When we publicly debate, we use those same principles

          • E.g., if I want to argue against gays, it’s riskier for our SOC if I argue that gays will burn in hell

      • If OC works, we endorse the SAME principles for DIFF reasons

    • Public reason

      • PB = when we justify decision, we should appeal only to reasons that abide by PoJ

      • INSTs NEED TO justify their decisions based on conception of JUS

        • E.g., court can say anti-abortion if it...